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Cite as: [2005] CSOH 40, [2005] ScotCS CSOH_40

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Baillie v. ECG Group Ltd [2005] ScotCS CSOH_40 (18 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 40

PD1254/04

OPINION OF LORD CARLOWAY

in the cause

JAMES GIBSON BAILLIE

Pursuer;

against

ECG GROUP LIMITED

Defenders:

________________

Pursuer: Gardiner; Archibald Campbell & Harley, W.S.

Defenders: McGregor; Anderson Strathern

18 March 2005

1. Pleadings
[1] The pursuer's case on the merits appears to be a straightforward one in relation to the cause of the accident. He avers :

"... the pursuer was working in the course of his employment as a security guard at warehouse premises ... owned by Sun Microsystems Limited. A cherry picker belonging to the defenders and being driven by Mr Stubbs [in the course of his employment with the defenders] was attempting to enter Bay 1 ... The defenders had control of the premises. Mr Stubbs could not see in front of him. The cherry picker was not fitted with a device to improve vision ... The entrance to the ... Bay was blocked by an electric pallet stacker ... The pursuer told Mr Stubbs to wait while he cleared the entrance to the ... Bay. The pursuer walked round in front of the cherry picker in order to clear the obstruction. As he did so ... Mr Stubbs suddenly and without warning moved the cherry picker forward and struck the pursuer ...".

These facts are all essentially admitted, except that the defenders deny that they were in control of the premises and maintain that Sun Microsystems were. The defenders were on site simply "to perform work" for Sun Microsytems. At the material time, the defenders maintain that the pursuer walked into the cherry picker's "blind spot".

[2] In relation to the applicability of the law, the pursuer begins by stating that his claim is based at common law, notably the actions of the defenders' employee in failing to take reasonable care for the pursuer. This simple and apparently strong common law case is not, however, left to survive on its own. It is accompanied by several different statutory cases under two separate regulatory regimes. The first of these is the Provision and Use of Work Equipment Regulations 1998 (SI 2303), which impose obligations on certain persons, including employers providing work equipment for their employees and those having control of work equipment to the extent of that control. The pursuer founds upon breaches of regulations 4 (suitability of work equipment), 5 (maintenance of such equipment) and 28(e). The latter deals with self-propelled equipment and provides that every employer shall ensure that:

"where the driver's direct field of vision is inadequate to ensure safety, there are adequate devices for improving his vision so far as reasonably practicable".

The second regime is the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 3004), where breaches of regulations 4, 5 and 17 are founded upon. Ultimately, the application of regulation 5 (maintenance of equipment and workplace) was not insisted upon. Regulation 4 does not impose a specific statutory duty but provides, inter alia, that every person who has, to any extent, control of a workplace must comply with the other regulations in so far as relating to matters within his control. Regulation 17 covers the need to organise "traffic routes" "in such a way that pedestrians and vehicles can circulate in a safe manner" etc.

[3] Turning to the pursuer's averments of loss, he avers an ankle injury, which is said to render him unfit for his pre-accident work thus causing loss of earnings and pension rights. Originally, the pursuer had averments relating to a pre-accident condition which had predicted an imminent coronary by-pass. Although these were deleted by amendment, the defenders have averments concerning cardiac failure secondary to ischaemic heart disease which, it is said, significantly reduces the pursuer's life expectancy.

2. Submissions
[4] The pursuer moved for issues and the defenders opposed this application and lodged grounds for that opposition in terms of Rule of Court 43.6.(5) and the relative paragraph of the Practice Note (No. 2 of 2003). In opposing issues, the defenders advanced the general proposition that certain parts of the pursuer's pleadings were of "doubtful relevancy" and others were too complex for consideration by a jury. Three areas were the subject of criticism. First, in relation to the case under the 1992 Regulations, the pursuer had failed to specify the basis for his averment that the defenders were "in control" of the premises, a pre-requisite for the application of the statutory duties. This was against a background of the defenders pleading that they were on site simply to do some work for Sun Microsystems. Upon enquiry, the defenders explained that they had permission from Sun to enter the premises and move goods about using the cherry picker. However, it was for the pursuer to aver a relevant case on this issue (Lord Justice-Clerk (Thomson) in Moore v Alexander Stephen & Sons 1954 SC 331, at 334, and Boyle v Glasgow Corporation 1949 SC 254 at 261, as quoted by Lady Paton in Higgins v DHL International (UK) 2003 SLT 1301 at para [23]). In relation to the specific regulation founded upon (17), the defenders submitted that no amount of demarcation of traffic routes could have had any influence on this accident. Secondly, in relation to the 1998 Regulations, while conceding the potential relevancy of regulation 28(e), the defenders maintained that the matter of reasonable practicability rendered the case too complex for consideration by a jury. Thirdly, the defenders submitted that the interaction between the ankle injury and the heart disease, in relation to future loss of earnings and pension rights, also involved a number of permutations rendering the case unsuitable for jury trial. The jury would have difficulty is disentangling which loss should be attributable to the accident and which to the heart condition (see Elwis v Consignia, unreported, 16 June 2004, Lord Reed at paragraph [16]). The assessment of damages in this regard involved questions of mixed fact and law and not mere factual complexity.

[5] The pursuer contended that his averment about control of the premises was sufficient in terms of the new rules on personal injuries cases (Rule of Court 43.2.(1)(a)). Again, upon enquiry, the pursuer was unable to say much more than the defenders had said about the factual position, namely that the defenders were permitted in some way to operate on Sun Microsystems' premises. In relation to regulation 17, the pursuer maintained that the accident demonstrated the inadequacy of the organisation of traffic routes, such organisation being a wide concept and not just related to the physical separation of the routes themselves. Reasonable practicability was a relatively straightforward concept (Redgrave's Health and Safety (4^th ed) para 2.50) upon which a judge could adequately direct a jury. So far as quantum was concerned, again a jury was capable of making an appropriate decision under the directions of the trial judge.

3. Decision
[6] It would certainly appear that the pursuer has gone some way down a route towards complicating what appears to be a straightforward case of common law fault by introducing statutory regulations, whose applicability to the facts is not immediately clear. In that connection, the remarks of the Lord Justice-Clerk (Thomson) in Boyle v Glasgow Corporation (supra) and Moore v Alexander Stephen & Sons (supra) must be kept in mind. All questions of relevancy must be disposed of before issues are allowed.

[7] The defenders first complain about the lack of specification of the averments regarding their control of the premises. It is certainly not obvious from the pleadings what the basis for that control might be. All that is clear is that the defenders were operating a cherry picker in the warehouse premises of a third party, namely Sun Microsystems. The new rules on pleadings in personal injury actions refer to making averments which relate "only to those facts necessary to establish the claim" (Rule of Court 43.2.(1)(a)). Although the phraseology selected was intended to create a departure from what had become over elaborate and formulaic forms of pleading in personal injuries cases, the new rules simply reflect what was always the fundamental principle in written pleadings, namely to aver only the facts which need to be proved to establish the case and not evidence or argument.

[8] The pursuer avers that the defenders were in control of the premises and will, no doubt, seek to lead evidence to support that contention. This gives the defenders ample notice of the case against them in that regard, especially when they will have the opportunity to peruse any documents and to precognosce any witnesses on the lists which the pursuer must lodge. The defenders must be taken to be well aware of what their role on the premises was and they ought to have no difficulty in selecting the appropriate evidence to prove that or to rebut the pursuer's contention. Once the evidence emerges, a determination of fact can be made on whether the defenders were to any extent in control of the premises or not. The statutory case under the 1992 Regulations will, at least in part, stand or fall upon that determination. There is no doubtful relevancy here nor is there any lack of sufficient specification. A jury will be quite capable of deciding this matter under appropriate directions from the trial judge. Accordingly, I do not consider that this point is one of substance.

[9] The general import of Regulation 17 has been touched upon above. It is concerned with the organisation of traffic routes, notably the separation of pedestrian and vehicular traffic. The pursuer does not specify which part or parts of the regulation he is founding upon. However, even looking at the possibility that he is founding on each part, it is not possible to glean the relevance of this regulation to the case. The cherry picker was attempting to enter "Bay 1", presumably some form of loading bay. There is no indication that there was any problem with the route into the bay for either vehicular or pedestrian traffic. It appears to be accepted that the pursuer went into the entrance of the bay for the purpose of moving the pallet stacker. He deliberately walked in front of the cherry picker, albeit for a stated purpose. If the cherry picker was using a traffic route, no amount of organisation of that route or improvement to its suitability would appear to have been capable of averting the accident. This part of the case, then, would appear to be at least of doubtful relevancy, if not wholly irrelevant. Standing its continued inclusion on the record, the case is unsuitable for jury trial.

[10] The defenders make no criticism of the relevance of the pursuer's case based on regulations 4 and 5 of the 1998 Regulations, although the significance of maintenance is unclear. The defenders restrict their comments to complexity created by the qualification of reasonable practicability in regulation 28(e). The pursuer avers that the defenders' driver could not properly see out of the front of the cherry picker. The defenders accept that a "blind spot" existed. Blind spots can normally be dealt with by mirrors or more sophisticated electronic equipment. If the defenders wish to demonstrate that no reasonably practicable measures could have been taken (and they make a bald averment to that effect), then they may do so. The use of the phrase "reasonably practicable" is a well known one, which has been subject to not a little legal analysis. There ought to be no difficulty in a trial judge directing a jury appropriately on the phrase and explaining, if the words do not speak for themselves, just what is intended by it. The submission on complexity in this regard is rejected.

[11] Finally, there is the inter-relationship of the pursuer's heart condition and his accident relative to future loss of earnings and pension. If there is any complex issue here, it is one of fact. A jury ought to be able to take pragmatic and sensible decisions on such an issue, again no doubt with some assistance by direction of the judge. Having heard the evidence on the severity or otherwise of the heart condition, a jury ought to be well placed, with its collective knowledge of the workplace and earnings, to reach a reasoned and logical decision. The complaint of complexity here is rejected.

[12] The only reason for not allowing issues is the continued existence of the regulation 17 case. The pursuer has already requested that his regulation 5 case be deleted from record and I will allow that amendment moved by deleting ", 5" from the penultimate line of the sixth statement of claim. Were the pursuer to amend further by deleting all reference to the 1992 Regulations, then I would be prepared to allow issues. If he does not wish to do so, I will allow a proof before answer. Rather than denying him issues now, I will put the case out By-Order so that the pursuer can state his current position.